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Safety Fitness Determination Notice of Proposed Rulemaking FAQs

What are the major changes proposed in the Safety Fitness Determination (SFD) notice of proposed rulemaking?

This proposed rule would replace the current three-tier rating system (i.e., satisfactory–conditional–unsatisfactory) for motor carriers with a single SFD - unfit. As proposed, there would be three ways a carrier could be proposed unfit:

a motor carrier could fail two or more Behavior Analysis and Safety Improvement Categories (BASICs) based on an absolute or fixed measure of on-road safety performance data from inspections;

a motor carrier could have enough violations of the revised set of critical and acute regulations, identified through an investigation, to cause the motor carrier to fail two or more BASICs; or

a motor carrier could fail two or more BASICs based on a combination of data from on-road safety data and investigation results.

It will identify the carriers who are the worst-of-the-worst as it relates to safety performance and compliance with the regulations.

How is SFD different from SMS?

The major differences between SMS and SFD include:

The intervention thresholds in SMS (Alerts) are much lower than the proposed SFD failure standards.

SMS is based on percentiles – SFD is based on absolute or fixed performance measures.

SMS scores can be impacted by other carriers – SFD can only be impacted by a carrier’s own inspections and investigations.

The Crash Indicator and Controlled Substances/Alcohol Compliance BASICs would be assessed only during investigations. The preventability of a crash would be determined before any crash is used to propose an unfit determination.

Why is FMCSA proposing to eliminate satisfactory and conditional ratings?

In this NPRM, FMCSA proposes to eliminate the current three-tier rating system (i.e., satisfactory–conditional–unsatisfactory) for determining safety fitness in favor of a single determination of unfit. FMCSA’s statutory requirement is to determine which owners or operators are unfit to operate on the Nation’s roadways. The statute prescribes specific consequences for motor carriers found to be unfit. Such carriers are prohibited from operating in interstate commerce or transportation that affects interstate commerce

Why is FMCSA proposing to use more on-road safety data in the SFD process?

Based on analysis of roadside inspection data and investigation results, the Agency has found that integration of on-road safety data into the SFD process would improve the assessment of motor carriers and the identification of unfit motor carriers. Such integration is a longstanding recommendation of the National Transportation Safety Board (NTSB). Under this proposal, unfit determinations could be based on a carrier’s on-road safety data alone.

Why did FMCSA propose different critical and acute violations?

As a result of its analysis and alternatives development, FMCSA proposes to alter the list of critical and acute regulations. Analysis by FMCSA compared the crash rates of motor carriers with violations of the existing list of critical and acute regulations to the crash rates of motor carriers with violations of the proposed list of critical and acute regulations. The revised, refined list of critical and acute regulations correlated to a higher crash rate. For the purpose of proposing unfit SFDs, the refined list of critical and acute regulations is a strong indicator of crash risk.

Why is FMCSA continuing to use BASICs?

The SMS Behavior Analysis and Safety Improvement Categories (BASICs) are the method the Agency uses to organize the vast amount of roadside inspection data into categories of related violations. Using data from inspections or investigations or both, FMCSA proposes to evaluate carriers monthly to determine if they failed two or more BASICs and thus should be proposed unfit. FMCSA’s Motor Carrier Management Information System (MCMIS) automatically takes each motor carrier’s safety data from on-road safety inspections and converts the data into a BASIC measure. Each motor carrier’s measure in each BASIC is a quantifiable determination of safety behavior in that BASIC.

How does a carrier figure out if the SFD NPRM would affect them?

The Agency has developed a variety of tools to assist the public with the review of the NPRM. We have an easy-to-use calculator to help carriers understand the impact of the proposed rule on their company and also a recorded webinar explaining the proposal. Note: You should have your company’s SMS profile and most recent investigation report in-hand when using the calculator.

Are the failure standards at levels that are higher than the SMS thresholds?

The SFD NPRM proposes failure standards that are higher than the thresholds for interventions under SMS.

The proposed SFD failure standards would be equivalent to the measures that would determine a motor carrier at or above the 96th percentile for the Unsafe Driving or HOS Compliance BASIC would fail that BASIC, that is, a person would know the carrier is in the worst 4 percent of carriers that have measurable (non-zero) data in MCMIS. The proposed SFD standards would determine that is at or above the 99th percentile for the Driver Fitness, Vehicle Maintenance, or HM Compliance BASIC would fail that BASIC. Likewise, a person would know the carrier is in the worst 1 percent of carriers that have measurable data in the MCMIS. The specific failure standards would be set in the final rule.

Did FMCSA take any into consideration any of the recommendations from stakeholders for SMS changes?

Yes, the SFD NPRM uses a higher number of inspections for data sufficiency (11 inspections with violations) and uses failure measures and performance measures so motor carriers are not impacted by changes in another carrier’s performance. In addition, the SFD NPRM seeks feedback on changes to violation severity weighting, safety event groups, and a variety of other issues based on input received on SMS.

Are passenger carriers and hazardous materials carriers held to a different standard in this proposal than other carriers?

The NPRM does not propose different SFD standards for either passenger or HM carriers, bu the Agency is considering, and seeking comment on, alternative proposals for passenger carriers to be proposed as unfit that would be based on lower failure measures (comparable to the 75th percentile) in either the Unsafe Driving or the Hours of Service Compliance BASICs without failing a second BASIC. In addition, FMCSA is considering a proposal that would also result in a proposed unfit if a passenger carrier meets or exceeds SFD failure standards with absolute thresholds comparable to the 90th percentile in two of the three other BASICs —Vehicle Maintenance, Driver Fitness, or Hazardous Materials (HM) Compliance.

The SMS also has lower intervention thresholds for HM carriers. As a result, the Agency seeks feedback and data on whether these carriers should be held to a more stringent standard (i.e., lower BASIC failure standards). The Agency is specifically interested in feedback on whether the failure standard should be different for HM Safety Permitted carriers.

Would these changes apply to US, Canadian, and Mexican motor carriers?

Yes – All motor carriers with DOT safety registration operating in the United States would be subject to the regulatory changes in this rule.

How many carriers would be proposed unfit each year under this proposal? How many from on-road safety data?

FMCSA estimates proposing as unfit 3,056 motor carriers a year under the proposed SFD process, more than two and half times the number of proposed unfit SFDs under the current process. However, only 262 are expected to be proposed as unfit from on-road safety performance data alone.

What are the estimated benefits of this NPRM?

FMCSA estimates benefits would include the reduction of 41 fatal, 508 injury, and 872 tow-away CMV crashes avoided for the 2012 analysis year.

Why is FMCSA letting commenters respond to other commenters’ recommendations and data?

FMCSA understands that this rulemaking will raise many important and novel issues and concerns from a broad spectrum of interested parties. As a result, the Agency believes it would be productive for commenters to be able to respond to comments received, and could provide data and information to help the Agency in making final decisions about the rule.

Does FMCSA expect a significant impact on the States?

FMCSA proposes one revision to the conditions required for the Agency to provide funds under its MCSAP grant program. FMCSA proposes to amend existing 49 CFR 350.201(a) to add the phrase, “by enforcing orders on commercial motor vehicle safety and HM transportation safety.” This change would make it clear that States receiving MCSAP grants would be expected to enforce various orders issued by FMCSA, for example, motor carrier out-of-service orders entered by FMCSA under 49 CFR 385.13, 386.72, 386.73, 386.83, or similar provisions. For most States, the proposed change to the MCSAP rules would impose no additional burden on them. However, some States may need legislative or regulatory action to enable their roadside inspectors to place CMVs operated by private motor carriers and exempt for-hire carriers out of service. The States would have 3 years from the effective date of the final rule to accomplish these legislative or regulatory actions.

FMCSA specifically seeks comments on the impacts to the States from these changes and requests information on implementation impacts that should be considered in finalizing this rule.

Are any new administrative reviews available?

After a proposed unfit SFD, a motor carrier would have various administrative proceedings available to it. The administrative proceedings would include:

Data quality administrative reviews thought the DataQs system, currently known as Requests for Data Review (RDR);

Reviews for material errors in assigning a proposed unfit SFD;

Reviews claiming unconsidered on-road performance inspection data;

Reviews after a motor carrier requests to operate under a compliance agreement; and

Reviews when requesting to resume operations after a final unfit determination.

Is the preventability of a crash considered before it is used for a proposed unfit determination?

Yes. As is the Agency’s current practice, any crash being used as the basis for a proposed unfit safety fitness determination would first be reviewed to determine if it was preventable.

What is the definition of a failure standard? What is the definition of a performance standard?

Failure standard means an absolute or fixed measure that if met or exceeded, based on a motor carrier’s own safety performance alone, will cause a BASIC to be failed.

Does this SFD proposal use safety event groups? Time weighting? Severity weighting?

Yes. the SFD NPRM uses safety event groups in the development of the proposed failure standards. However, once the failure standards are set by regulation, motor carriers would not be compared to their peers in the SFD proposal. The on-road safety data methodology uses time weighting and severity weighting. FMCSA proposes alternatives for using the current safety event groups and severity weighting and specifically seeks comments on these factors.

How many inspections do I have to have in a 24-month period to potentially receive a proposed unfit?

A motor carrier would have to have a minimum of 11 inspections with violations in a 24 month period before it could be eligible for a proposed unfit safety fitness determination based on on-road safety data.

Is my company’s performance measure impacted by other carriers’ performance?

No. Once the failure standards are set by regulation, motor carriers would not be compared to or impacted by their peers under the SFD proposal.

Does FMCSA have the resources to implement this proposed rule?

FMCSA strategically proposed the failure standards that would result in a population of proposed unfit carriers that can be managed by the Agency. Recently By comparison, the Agency is only able to investigate 15,000 carriers annually, rating less than half of those companies. Therefore, the volume of investigations is manageable.

When does FMCSA propose this rule would be effective?

After receiving comments and reply comments on the NPRM, FMCSA will prepare a final rule. The NPRM proposes that the regulations would become effective 90 days after publication of the final rule in the Federal Register.

If finalized as proposed, would the SFD rule supersede the HMSP enforcement policy issued on June 19, 2015?

How do the “HM Compliance Failure Standards” relate to the 2012 HMSP fixed disqualification standards?

There is not a direct comparison that can be made between the existing failure standards and the proposed HM Compliance Standards. The HM Failure standard is an absolute measure based on carrier performance in the HM Compliance BASIC and the 2012 HMSP fixed disqualification standards considers the carrier’s crash rate and driver, vehicle, and HM OOS rates to be below the 70th percentile and describes other conditions that must be satisfied to qualify for the initial issuance of a permit.

How does the HMSP crash rate 0.136 relate to the SFD failure standard crash rates?

The HMSP crash rate is a fixed qualification standard which compares a HMSP carrier’s crash rate to the national average, and utilizes crashes reported in the agency’s Motor Carrier Management Information System (MCMIS). Under the proposed SFD the failure standard for crash rates would only be used if evaluated for preventability during an investigation which is consistent with FMCSA’s existing methodology. The Agency calculates a motor carrier’s crash rate by dividing the motor carrier’s number of recordable interstate and intrastate crashes in the previous 12 months by 1,000,000. The failure standards for crash rates are 1.5 for general operations and 1.7 for urban operations.

Why did the Agency propose to use the absolute measure as the failure standard for HMSP holders, rather than maintain the fixed HMSP disqualification rates?

While both measures of compliance provide a fixed standard, the absolute measure involved a more comprehensive use of the available performance data. The Agency is clear however, in the NPRM that it is seeking input on this fixed failure threshold.

If an HMSP holder exceeds the failure standard, does it have the option to continue to operate under a compliance agreement in this proposal?

Yes, however as proposed, the motor carrier’s Hazardous Materials Safety Permit would still be subject to suspension or revocation in accordance with 49 CFR Part 385.421.

The proposed SFD “unfit” triggers with one month scores, while the existing HMSP enforcement policy requires disqualifying scores for 2 months. What happens with that policy under this proposed rule?

If finalized as proposed, the SFD rule would supersede the existing HM enforcement policy and would be run monthly and would initiate a proposed unfit if the failure measures are met or exceeded. The proposed methodology requires that a carrier fail two or more BASICs before a proposed unfit determination would be issued. The current HMSP enforcement policy would remain in effect however if a carrier meets or exceeds the HM BASIC or meets and exceeds thresholds of any two other BASICs over a consecutive two-month period, FMCSA will identify the carrier for a comprehensive investigation.